The Comparative Study On The Realization Of Floating Charge

Floating Charge system, with more than one hundred years’ history, is originatedfrom Equity Law of Britain in late1950s. Under this system, the mortgager has theright to manage the company with autonomy. The system with characteristics ofpracticability, flexibility and Inclusivity, not only meets the financing needs of theenterprises under the modern market economy, it also makes full use of use value ofcollateral and thus it is favored by many common law countries and referred to bycivil law countries. China also accepted the system which was enacted in ChineseProperty Law. But the author, after comparative study, finds that the floating chargesystem in common law countries is promulgated in details, especially the realizationof the floating charge which is stipulated in great detail in realization preconditions,priority sequence and realization methods, However, only three clauses on floatingcharge system was made in Chinese property law, of which the realization on floatingcharge is only scratched the surface and as a result, there are lots of gas and loopholesin legislation and the legal function as well as the theoretic development of the systemis affected. The author aims to find the problems in the realization system of floatingcharge by comparative study of system in common law countries and our country andendeavor to put forward legislation suggestions on improvement of floating systemand deeper thoughts. This thesis is based on the realization of floating mortgage as themain line and discusses the four parts:The first chapter mainly discusses the premise condition of the realization of floating mortgage. Studying the realization of floating mortgage, we cannot skip itsprecondition. Common law countries and civil law countries stipulate thecorresponding provisions on the precondition of floating mortgage which have theconvergence in general place, but on specific details of the problem. From thesedifferent details, this chapter expounds and compares the pros and cons of two big lawsystem on the precondition of floating mortgage.The second chater mainly analyzes priority issues of floating mortgagerealization. Because the challenge of third party rights in other different forms will beinvolved in the process of floating mortgage, the real rights for security of therealization of floating mortgagee may be limited by some obstacles, define the priorityissues of floating mortgage is especially important. This chater will respectively taketypical countries like Britain and the United Statesin in common law system andFrance and Japan of continental law system as examples to make a comparative studyon different rules about priority issues of floating mortgage, so that their respectiveadvantages and disadvantages are be known.The third chapter mainly explores different ways of floating mortgage realization.In legal practice of all countries, the realization of the floating mortgage gives priorityto ways with private relief and public relief force, and common law countries tend tobe take the private relief way, and civil law countries tend to take public aid way. Thischapter will explain an important system--property custodian system involving inways of floating mortgage realization in detail.The last chapter analyzes the legislative status quo of floating mortgage in ourcountry to improve the problem. In the property law of our country, stipulation aboutthis system is not perfect, there are many defects and insufficiency in the legislationand implementation,especially in the realization condition, a priority, registrationsystem, property custodian system, etc. In this part the author analyses the problems,in the meanwhile puts forward some ideas and suggestions, hoping to be helpful.